Reports on the Chilean Constituent Process and activities of the Observatory

“An assessment of the Chilean Constituent Process”, published by the Observatory of the Chilean Consituent Process is available for download. It includes the chapters:

  • “Political participation and constitution-making: The case of Chile”, by Claudia Heiss,
  • – “The Chilean Constituent Process under the Bachelet Presidency“, by Ernesto Riffo Elgueta, and
  • – “Indigenous peoples and constituent process“, by Jorge Contesse and Cristián Sanhueza.

The first yearly report of the Observatory (in Spanish) is available for download as well. It includes opinion pieces, editorials, and interviews with experts on the Chilean and comparative constituent processes, infographics, and summaries of colloquia organized by the Observatory,

Click on each image to download.

Alberto Coddou on the Chilean presidential runoff

The Chilean presidential runoff and the revival of the constitutional agenda

Alberto Coddou Mc Manus

Despite initial indications that Chile’s constituent process was doomed to stall with the probable election of a right-wing government, the presidential and congressional elections of 19 November have challenged the dominant narratives. On Sunday 17 December 2017, Chile will face a presidential runoff with a revived constitutional agenda that is likely to stay for some time in Chilean politics – writes Alberto Coddou Mc Manus.

This column appeared on International IDEA’s website ConstitutionNET.

Three weeks ago, almost everyone thought that Sebastián Piñera, a right-wing billionaire, was going to win either in the first round, or in the presidential runoff to be held next Sunday (17 December 2017). Opinion polls gave him an overwhelming support, and some even anticipated that there might be no need for a second round. Somehow, many thought that the election was already decided, and that Chileans were leaning in favour of moderating the pace of the reforms promoted by the current socialist government, which involved regulations on access to the educational system, a tax reform, a qualified abortion law, and the creation of a new constitutional arrangement to replace Pinochet’s constitution. For several observers, the ‘sociological’ analysis was more or less clear: four years ago Chileans were willing to make structural reforms to the ‘model’ – that is, to the open endorsement of a free market system ‘with a human face’ that began with the return to democracy in the 1990s, which explained the victory of a socialist president. Nowadays, these analysts claim, Chileans think the government went too far, and that although they want more opportunities to flourish, they want to retain their freedom to choose between the private system and the state for access to basic goods. Moreover, and following an agenda-setting strategy of different media corporations, liberal think-thanks, and economists, this climate was amplified by the negative approval rates of president Bachelet and her cabinet, and an allegedly huge backlash against the reforms promoted by the government.

In this scenario, the constituent process launched by the government during 2016 was doomed to fail. Although a consultation process gathered more than 200 000 people in several stages to discuss the contents of a new constitutional chart, the lack of political support among both the official governing coalition and the right-wing opposition made the constitutional path harder. Low rates of approvals, and the need to address the social and economic effects of the end of the ‘golden decade’ of commodities in the region pushed the government away from any big-scale project of reform without immediate impact on the population. Furthermore, the need to achieve super-majoritarian quorums (2/3rds or 3/5ths of each chamber of Congress) for any constitutional project to pass, frustrated any constitutional enthusiast. In the words of a former socialist senator, discussing a new constitution in these circumstances was like ‘smoking opium’.

After the 19 November 2017 vote, however, the panorama is now radically different. Unlike even the most negative predictions, Sebastián Piñera came in first place with a mere 36% of support. The biggest surprise, however, was the strong contest for the second place, which would determine the contender for the presidential runoff: while the candidate of the ruling coalition (Alejandro Guillier) achieved a poor 22%, Beatriz Sanchez, supported by a newly created leftist coalition (Broad Front), ended with 20% of the votes (a difference of approximately 150 000 votes). Furthermore, the parliamentary elections also went significantly against public expectations. The older binominal electoral system, which gave the two ruling coalitions an almost undisputed power to control access to parliamentary seats, was replaced by a new proportional system that gave more opportunities for smaller political platforms within an enlarged Congress. Although there was some uncertainty regarding the composition of the new Congress, nobody expected the achievements of the Broad Front, which elected 20 members in the Chamber of Deputies and one in the Senate.

In further surprises, several ‘old barons’ of different parties were not re-elected; a young movement of liberal right-wing leaders, who are attempting to replace the traditional right, increased their participation; a gender quota law enacted at the end of last year radically increased female presence, including an indigenous leader. From every point of view, this Congress is more attuned to Chilean society, and for different reasons, is a Congress that moved one step to the left. In this new scenario, the presidential runoff race has been slanted to address the issues raised by the Broad Front, such as an end to the pension system bequeathed by Pinochet, the scope of Bachelet’s commitments to a free and high quality education for all, and, more importantly, the prospects of a new constitution. Alejandro Guillier has now received different endorsements from the Broad Front, including many elected Congresspersons, and from Beatriz Sánchez herself. Within these exchanges, the constitutional agenda has acquired a new life, becoming a crucial bridge for left-of-center and far-left positions that may have different stances on several public policies.

The constitutional agenda now has different options for resurrection. There is a constitutional bill pending in Congress that would create a ‘Constitutional Convention’ that should decide on a constitutional draft to be presented by the government after next Sunday’s presidential runoff. Although the name ‘Constitutional Convention’ invites us to think of a mixed composition of elected representatives and citizens, the bill does not prejudge on this regard. Alejandro Guillier has said that this Convention must adopt the form of a Constituent Assembly (composed of citizens specially elected for the sole task of creating a new constitutional draft). However, the approval of this bill, and even the precise nature of the Convention, are subject to super-majority constitutional quorums, which curtails the chances for this project to succeed in this Congress given the likely opposition from the parties on the right. The Broad Front is now pressing Guillier’s support team to open discussion for an entry referendum, that is, an amendment that could allow the president to call for a referendum that can begin a constituent process without the constraint of current constitutional frameworks. Voices from the socialist and communist parties, and other militants on the left of the New Majority coalition are of the same opinion, but Alejandro Guillier still lacks a clear stance on the possibility of endorsing a ‘new constitution’ as a main banner of his campaign for next Sunday’s election.

Whatever results we may expect, and whatever the future of the constituent process initiated by the Bachelet government may be, the constitutional reform agenda is now here to stay for some time. With the new left in Congress, and with increasing demands for more egalitarian arrangements in the access to fundamental rights, constitutional issues will continue to arise every time the constitution acts as a blockade for what politics can do. Despite the reforms that have addressed some of the major constraints on democracy in the Chilean Constitution, there are still remnants that make structural reforms difficult, including the high threshold for the modification of ‘organic laws’, and the ‘preventive’ control of constitutionality by Chile’s Constitutional Court. During Bachelet’s term, every important reform was subject to review by the Constitutional Court, in some cases seriously curtailing the possibility of democratic deliberation in the Congress. If Guillier wins this Sunday, the constitutional arrangement will be in tension with a political manifesto committed to replace the constitution through a Constituent Assembly. To the contrary, if Sebastián Piñera gets the majority vote, he will have to lead a hyper-presidential system with a Congress that, although fragmented, has clearly moved to the left. In this context, disputes about the boundaries of powers between the Executive and the Congress are expected to grow, and with it the periodic revival of the constitutional agenda.

Alberto Coddou Mc Manus is Content and Consulting Coordinator at the Observatory of the Chilean Constituent Process.

Alberto Coddou on opinion polls and constitutional issues in Chile

Opinion polls and constitutional issues: the case of Chile

Alberto Coddou Mc Manus

In the case of Chile, opinion polls reveal a complex relationship between public opinion and constitutional issues. By listing separately, as possible answers, ‘constitutional reforms’, ‘education’, ‘health’ and ‘criminality’, the question posed by the poll implies that the existing constitution plays no role in explaining why the latter concerns figure among the top priorities of the population. The relationship between constitutional issues and opinion polls should be carefully examined, critically assessing how the questions are framed, how constitutional preferences and attitudes may result in concrete political behaviour, and considering how important it is to (re-)connect constitutional issues, constitutional problems and solutions, with the lives and everyday concerns of the people.

This column appeared on The Constitution Unit blog.

In general, opinion polls ask about our political preferences within established political systems. They ask us to express our political preferences or attitudes regarding the range of political options that the current constitutional system allows, either in the form of political candidates, ideas or reforms. In the US, opinion polls on constitutional matters have been fundamental for the analysis of the jurisprudence of the Supreme Court, either for predicting judgments or for explaining its reasons. Moreover, opinion polls are an important instrument for ascertaining the degree of support, political approval, or legitimacy that a certain political system garners among the population. However, opinion polls are also an important tool for asking people hypothetical questions, such as the ones that emerge from the exercise of constitutional powers. Indeed, opinion polls can be an interesting device for investigating the possibilities that may derive from exercises in constitutional imagination.

In this scenario, the relationship between opinion polls and constitutional issues is multifarious: on the one hand, they can be an interesting measure of the degree of legitimacy of an extant constitutional arrangement; on the other, they can inquire into the possible outcomes or possibilities that may be open under alternative constitutional frameworks. In the middle, we can find those techniques of social research that attempt to capture the degree to which issues of legitimacy may result in positive dispositions towards creating new political institutions, or crafting a new institutional arrangement for addressing political issues. In countries not at risk of experiencing violent political conflict, or that are not close to institutional collapse, the different relations between opinion polls and constitutional matters constitute an important source for broader political analysis.

In the case of Chile, opinion polls reveal a complex relationship between public opinion and constitutional issues. In the face of a presidential election that will take place on November 19, the relevance of constitutional issues for the political agenda is a matter of debate. Although the country is undergoing a ‘constituent process’ pushed by the government of Michelle Bachelet, which during 2016 implemented a consultation process (which included self-convened meetings and open citizens’ assemblies organized by the government) for the people to discuss what constitutional issues should be included in a new constitution, there has been scant ‘popular’ mobilisation around the issue after the end of that consultation process in August of 2016. We are not witnessing the degree of popular mobilisation and exchange of opinion that would be required for a ‘constitutional moment’, according to Bruce Ackerman. Chile has one of the lowest rates of political participation around the world, and it is part of a select list of countries where the fall of political turnout has been the sharpest since 1990 (a list which includes Congo, Libya, and Madagascar, countries which, unlike Chile, have experienced recent and serious political conflicts). According to a recent report by the United Nations Development Programme (UNDP), political disaffection and the loss of popular trust in political institutions should be a warning sign for Chilean democracy.

However, in the view of an important part of the political establishment, the lack of political interest by the citizenry is not a matter of concern. Indeed, they interpret the scenario just described as an expression of the maturity and consolidation of Chilean democracy. According to Carlos Peña and Harald Beyer – two of the most influential public intellectuals – Chileans, in particular the middle class created by the economic growth and political stability of the decades since the end of the Pinochet dictatorship, are satisfied with their lives and with their prospects for the near and mid-term future. Based on the analysis of different opinion polls and reports, they claim that political abstention should be understood as a sign of the consolidation of a society with advanced patterns of consumption, in which spaces of autonomy have decoupled individuals’ life-projects from the burdens of collective horizons of meaning embedded either in communities, societies, or the state. For these intellectuals, constitutional matters are not appealing for the Chilean society of 2017, composed of subjects that seem more interested in their individual well-being rather than questions of collective concern such as the discussion of a new constitution. According to the right-wing liberal think-thank Centro de Estudios Públicos [Centre for Public Studies], which runs the most methodologically well-regarded opinion poll, the concern for ‘constitutional reforms’ ranks very low among the priorities the population, much lower than the top three: crime, health, and education.

Source: Centro de Estudios Públicos, Estudio Nacional de Opinión Pública September -October 2017.

Based on these studies, the ‘liberal establishment’ supports the idea that political representatives should dismiss the constitutional agenda promoted by different social movements and then pushed forward by the current government. Furthermore, it constitutes now the basis of right-wing campaigning for this month’s election, and it is also attractive for several factions within the centre-left coalition that oppose the constitutional agenda of the President. In other words, they emphasise that politicians should focus more on what are often referred to as the ‘real issues of the people’: employment, security, and other basic services.

By listing separately, as possible answers, ‘constitutional reforms’, ‘education’, ‘health’ and ‘criminality’, the question posed by the poll implies that the existing constitution plays no role in explaining why the latter concerns figure among the top priorities of the population. On the contrary, it can be argued – as many have – that the problem of poor and unequal access to quality healthcare (which explains why ‘health’ is the second highest concern of the population) is related to the subsidiary role that the Pinochet Constitution assigns to government in the economy in general, including the provision of services such as healthcare and education. Shouldn’t we explore the possibility that the general concern over the issue of health entails the need to address issues related to the ‘new constitution’ or ‘constitutional reforms’ that could end with the subsidiary role of the Chilean state in the economy? Or, alternatively, what if we say that one of the problems that make health a top priority relates to the constitutionally protected freedom to choose a private health system, which contributes to the fact that the public health system remains of a poor quality. What these mainstream opinion polls do when asking citizens for the urgency of the new constitution is to frame the issue as a zero-sum game against other concerns, thus obscuring the connections between what directly concerns the citizen and the constitution.

According to several other opinion polls, such as those by the UNDP, an overwhelming majority of Chileans consider that the current constitution requires important or major reform, or that the country simply needs a new constitutional arrangement. When asked for the reasons for it, citizens claim that the fact of having been enacted under a dictatorship does not constitute a major flaw of the existing constitution; rather, a majority of the population thinks that the Pinochet Constitution is not appropriate for the challenges the country is currently facing, such as the urgent need to address the claims and interests of the indigenous population, or the widespread support for more egalitarian access to basic public services.

Source: United Nations Development Program (Chile), IV Encuestra Auditoría a la Democracia

Furthermore, a majority of Chileans think that Congress is not the body that should decide on a new constitutional arrangement (6%) but, rather, are in favour either of a ‘constitutional convention’ (composed of citizens and congresspeople) (41%) or a constituent assembly of representatives specifically elected for that purpose (43%).  

Conclusion

Opinion polls are an important source of information for constitutional debates, especially in countries where the emergence of the constituent power as a disruptive force, either in the form of violent conflicts or institutional collapse, is still at a distance. However, the relationship between constitutional issues and opinion polls should be carefully examined, critically assessing how the questions are framed, how constitutional preferences and attitudes may result in concrete political behaviour, and considering how important it is to (re-)connect constitutional issues, constitutional problems and solutions, with the lives and everyday concerns of the people.

Alberto Coddou Mc Manus is Content and Consulting Co-ordinator at the Observatory of the Chilean Constituent Process, and a PhD candidate in the UCL Faculty of Laws.

Alberto Coddou on the presidential election

The Chilean Presidential Election and the Constituent Process

Alberto Coddou Mc Manus

All of the candidates with the possibility of getting significant support from voters on next Sunday have a stance on constitutional affairs, which run from mayor constitutional amendments to the creation of a new constitution through a constituent assembly.

This column appeared on the I-CONnect blog.

Next Sunday, November 19, Chile will celebrate one of the most important presidential elections since the return to democracy in 1990s. According to different opinion polls, Sebastian Piñera, a right-wing millionaire, will most likely receive the highest number of votes in the first round, and face either the traditional centre-left coalition (now called Nueva Mayoría), or a new left movement called Frente Amplio, in a December 17 runoff for the presidency. For several observers, the main issue at debate is whether the Chilean citizens want to continue with the transformative agenda promoted by the current government of Michelle Bachelet. In the founding manifesto of the Nueva Mayoría, political commitments included a structural education reform, a more just and progressive scheme for taxation, and a new constitution. Last year, the government decided to launch a multi-stage constituent process, including a widespread consultation stage with informal political public spheres, which ended in a document – the Citizens’ Bases for a New Constitution – that should serve as the basis for a new project of the Constitution. Apparently, the President will present a final draft before the National Congress between the first and second rounds, that is, between November 19 and December 17. Although this process has been celebrated by several regional and international organizations, such as the OECD, it has not generated a massive opinion mobilization or debate among citizens. Despite complying with international standards of transparency, participation and inclusion, a lack of political and official support has resulted in only a weak follow-up to the constitutional momentum that was initially prompted by Bachelet’s government. One of the world’s most concentrated media, a dramatic decrease in political participation, and the electoral pressures that derive from the need to prevent the right-wing coalition from returning to power have been crucial factors in the lack of political support to the constitutional agenda from the socialist President.

An alternative reading for this decaying constitutional agenda comes from the “liberal establishment.” According to Carlos Peña, one of the leading public intellectuals, and Harald Beyer, current director of Centro de Estudios Públicos, the main right-wing/liberal think-tank in Chile, Chileans do not want any structural reform to the economic and political arrangements that are embedded in the Constitution of Pinochet. For them, these arrangements have provided the framework for a transition to democracy that has been celebrated as a model for the rest of Latin America. Based on different reports and opinion polls, they have described the transformation of Chilean society and the process of capitalist modernization as creating spaces of autonomy and individual life projects that are currently being decoupled from collective dimensions of meaning. Within this thesis, they understand the dramatically low political turnout as an epiphenomenon of increasingly large spaces of autonomy present in Chilean society Moreover, they argue that the lack of interest in constitutional affairs can be explained by the same phenomenon, while advanced patterns of consumption are a sign of the modernization of Chile, something which should not generate any significant alarm or concern. Overall, for these commentators, the political system should concentrate on the immediate and material interests of Chileans, which seem more concerned with individual well-being rather on ambitious projects of constitutional imagination.

All of the candidates with the possibility of getting significant support from voters on next Sunday have a stance on constitutional affairs, which run from mayor constitutional amendments to the creation of a new constitution through a constituent assembly. Based on the results next Sunday, one of two candidates from the left or center-left will face Sebastián Piñera in an eventual second round in December (ballotage): Alejandro Guillier, supported by the ruling coalition, and Beatriz Sanchez, a well-known journalist supported by recently created political parties and other social movements that have been present in the public sphere since the students mobilizations of 2011. These candidacies differ on various procedural and constitutional issues. For Sebastian Piñera, the constitution needs some major amendments that are related with the efficiency of the Chilean state in addressing citizen’s concerns, but not the creation of a new constitutional arrangement. For the senator Alejandro Guillier, the independent candidate of the Nueva Mayoría, there is a need to continue with the commitment of Michele Bachelet and thus the Congress must activate the creation of a Constitutional Convention, composed by citizens and representatives, or a Constituent Assembly, which could debate a constitutional project and propose a referendum to be decided ultimately by the people. Lastly, Beatriz Sanchez represents a majority of Chileans that, according to an opinion poll made by the Chilean branch of UNDP, claim that a Constituent Assembly is the best method to create a new constitution, including two referendums: one at the beginning of the process, asking citizens how they want to create the new constitution, and one at the end, ratifying the outcomes of the constituent assembly.

Furthermore, the candidates differ on their substantive proposals, that is, on their preferred constitutional framework that will allow them to materialize their political commitments. While Sebastian Piñera wishes to extend the presidential period to 6 years and improve the powers of Congress, Alejandro Guillier is leading the push for a semi-presidential model of government and to decrease the minimum age for exercising the franchise to 16. In turn, Beatriz Sánchez’s manifesto emphasizes greater political powers for Chile’s geographically different regions and new forms of direct democracy that could reverse low levels of trust in political institutions. Regarding fundamental rights, Piñera insists that Chileans do not want any major changes, and, even more, has won support by prioritizing the freedom to choose private systems for basic social provisions such as health, education, and social security; for Guillier and Sanchez, instead, these kind of freedoms are not improved by increasing market participation in the provision of basic services, but rather by creating minimum levels of egalitarian access to basic social rights. Nevertheless, the latter two candidates have major differences on the ways in which they would seek to make this political commitment viable.

In contrast with the liberal interpretation of current indicators of political disaffection and mistrust in political institutions as part of normal processes of modernization, all of the candidates’ support teams are aware that these numbers represent a serious problem for political legitimacy and that the constitution should do something more to address it. After next Sunday, it is expected that the constitutional agenda will revive with a need for left and centre-left parties and movements to agree on a basic agenda for the second round. How the presidential election ends will depend on the ability of the opposing political teams to connect citizens’ concerns and interests with broader constitutional affairs.

Alberto Coddou Mc Manus is Content and Consulting Co-ordinator at the Observatory of the Chilean Constituent Process, and a PhD candidate in the UCL Faculty of Laws.

Newsletter 7 (August-September 2017)

Editorial summary

The Constitutional Court undermines its own legitimacy

The Constitutional Court has been part of the constitutional problem. On the one hand, it is inevitable that the delegitimization of Constitution before the citizenry would reach the authority whose role is, by definition, to guarantee its supremacy. It is particularly controversial its duty to enforce the limiting role of the Constitution against the legislature by reviewing the constitutionality of the laws it passes. The exercise of this faculty necessarily involves frustrating the will expressed by the representative institutions. Additionally, in the case of Chile such intervention may occur even before a legal rule goes into force.

Its role as guardian of the Constitution, then, will always leave some dissatisfied, prompting criticism of the different rulings of the Court, its constitutional faculties (such as ex ante review), or its very existence, among other issues. Usually the Court’s rulings in cases of ex ante review have frustrated policies by center-left governments, as would be expected given the origin of current constitution and the characteristics of the political system developed under its during last three decades.

However, this time, after the adoption of the law decriminalizing abortion under three circumstances, most of the frustration was experienced by the right-wing coalition Chile Vamos and the conservative wing of the Christian Democratic party. The reactions have been diverse. The most cautious ones have been of resignation and acceptance of the ruling, accompanied by moral lamentation. Trying to balance respect for the ruling with a downplaying of its scope, others have made efforts to interpret the judgment by drawing attention to the fact that it was not unanimous –rather than only considering the legally binding aspects of the sentence–. Finally, some right-wing congresspeople have announced that they will seek to bring suit before the Inter-American Court of Human Rights on the grounds that, in their opinion, the decriminalization of abortion violates the American Convention on Human Rights. The latter strategy –although destined to fail given the Inter-American Court’s past rulings– suggests a risk that the Constitutional Court might lose legitimacy even in the eyes of the Right.

However, despite ruling, the Court’s decision left significant dissatisfaction in the Left due to the inclusion of a right to conscientious objection in the law which extends not only to natural persons –something that was included in the bill– but also to hospitals and clinics. It is clear that the Court overstepped its traditional competence as a “negative legislator” and by means of a skillful suppression of some words of the bill reversed in one hundred and eighty degrees the meaning of one of the provisions, thus incorporating into the law a right that the legislative had deliberately excluded. In doing so, it behaved rather as a positive legislator. If the explicit denial of institutional conscientious objection contained in the bill was unconstitutional, the Court should have eliminate such ban. However, it went further and included that right into the law. This was not legally necessary for the protection of the fundamental rights which it meant to protect. If, as the Court stated, the current Constitution guarantees such right, eliminating the ban leaves the constitutional right safe, which can be invoked by means of existing judicial remedies (such as writ of protection of fundamental rights), or even the ex post and concrete judicial review by the Constitutional Court itself. By including this right into the law, therefore, the Court not only frustrates the will of the legislator, but supplants it.

This did not go unnoticed among politicians, the legal community, nor civil society. Members of the Senate’s Constitutional Commission called it an intrusion, a group of Deputies submitted a request for reconsideration before the the Court, and within civil society several groups denounced the inclusion of the institutional right to conscientious objection as a risk for the effective provision of the health services involved in performing abortions in the cases now authorized by law.

The ruling in this case could have had the effect of appeasing the usual criticisms faced by to Court as guardian of a constitution that is delegitimized before the citizens, given the more liberal interpretation regarding the protection of the unborn and the explicit recognition of women’s rights in the ruling. However, by exceeding its powers, the Court’s action revives and deepens some of the most common criticisms regarding the undemocratic potential of its role.

Newsletter 6 (August 2017)

Editorial summary

The Constitutional Court and the constitutional problem

The Constitutional Court again became a matter of public controversy regarding the legitimacy of its existence, its powers, its appointment process, and its rulings in general. On this occasion the discussion took place due to the requirements submitted to the Court by a group of senators and one of deputies requesting that the bill which decriminalizes abortion under three circumstances (rape, fetal non-viability, and risk to the mother’s life) be ruled unconstitutional –one of the flagship projects of the Bachelet government–.

The Court ruled against the requirements regarding the three circumstances, so that part of the bill will be promulgated and become law. However, the Court did rule in favor of the part of the requirements which objected to the regulation of the exercise of the right to conscientious objection contained in the bill. The precise consequences of this aspect of the ruling will only be known after the sentence is mad public on the 28th of August.

At first glance, the controversies arising in relation to the intervention of the Court in the passing of laws –in particular through constitutional review request by the parties defeated in the vote in Congress– appear not to be directly connected to the constitutional problem, but there are some relevant issues that should be highlighted.

The most obvious connection is that Constitutional Court is seen as one of the elements that make the current Constitution “rigged”, insofar as it prevents democratic progress, having been designed precisely to prevent the adoption of legal reforms that would move away from the political, economic and social “model” imposed by the Pinochet dictatorship and enshrined in the Constitution and different super-majority laws. That’s one element of its of legitimacy before the citizenry, and one of the motivations behind the demand for a new Constitution. It has even been argued that constitutional amendments that eliminated the Court, the supermajority quorums for certain laws would open the possibility of considering such amended constitution as a new Constitution.

However, as we’ve recently highlighted, whenever the Constitutional Court reviews the constitutionality of bills of special social relevance, it shows that current Constitution is alien to citizens. In such cases, public discussion focuses on the Court’s legitimacy much more than on constitutional arguments about whether the contested rules are unconstitutional according to the best interpretation of the constitutional text. This suggests that the Constitution is not able to fulfill its role of mediating political debate, of providing a common language and a regulatory framework in terms of which to discuss what legal rights should be recognized. Except those who are professionally involved in the interpretation and application of Constitution –constitutional scholars and lawyers who litigate before courts with constitutional jurisdiction (categories between which there is significant overlap)–, interpretive discussion does not take place within the population. This is relevant for the constitutional problem because, although public ignorance of the constitutional text is usually presented as a reason for dismissing demands for constitutional change, this situation should rather count as an argument in favor of the need for a participatory constituent process that would make it possible for citizens to make the Constitution their own.

The Constitutional Court, social dialogue and constitutional change

One interesting aspect of the constitutional review process of the abortion bill was the convening of public hearings in which civil society organizations were able to make 10-minute presentations before the Court. As it has been emphasized in comparative literature (regarding countries such as Colombia, Brazil, or Argentina), such experiences can be considered as part of a novel development in constitutional practices, in particular, as a form of “dialogical constitutionalism”, where constitutional interpretation involves interactions between various actors, including courts, political powers, and civil society.

By being open to receive opinions from civil society actors, the Court creates a potentially deliberative space in which the constitutional content that is established by interpretation and application of the text is can take place openly. The possibility of this constitutional development is relevant from the point of view of the study of the Chilean constitutional problem and its constituent process. Eventually, a dialogical constitutional development could lead to constitutional change through interpretation –a phenomenon often referred to as “constitutional mutation”, and which is presented by conservative actors as a kind of constitutional change more respectful of constitutional tradition than the drafting of a new Constitution–. However, given the legitimacy crisis of institutions, which certainly reaches the Court, the odds of that happening will depend on whether this “dialogical” exercise appears as properly oriented to listening and giving due consideration to the arguments in favor of different interpretations on the issue, either by rejecting or accepting them, as the case may be.

Those conditions put a burden on the Court which, in light of the way the hearings have been implemented in this case, don’t seem to have been met. Some weaknesses are attributable to a regulatory deficit. While in experiences in other countries in which hearings are regulated, in our country they are convened in application of a rule in the Court’s organic law which gives it ample faculties to “decree the measures it deems necessary for the most appropriate substantiation and resolution of the case before it” (Article 37). The particular way in which it is regulated, then, make the hearings procedure whose existence and operation is at the sole discretion of the Court.

In convening the hearings, the Court has not offered reasons for doing so other than making reference to the cited rule. However, it seems clear that decision to convene audiences is guided by a political judgment, namely the relevance of the matter for public opinion. While in some cases the need to receive opinions through hearings and reports is explained by the need for a scientific or technical background –as was the case in the process regarding the morning-after pill–, the Court puts no restrictions on those who request to make presentations at the hearings other that representing some interests involved in the matter. Thus, in the case of the abortion bill more than one hundred organizations of different nature requested to be heard: from universities and think thanks, to medical professional associations, churches, and activists in general. Only regarding some of them could it be argued that their contribution to deliberation was of a factual nature.

Moreover, the fact that the purpose of the hearings in general is political seems to have been recognized in 2013 by who at that time was President of the Court, Minister Marisol Peña. In that year’s annual report she argued that the hearings are “a different way –and, indeed, a new way– to bring the work of this constitutional tribunal to the national community as a whole”.

Other aspects of the way the audiences take place are unfavorable to the purpose of contributing to a constitutional dialogue. For example, that the Court explicitly stated there would be no questions or comments from its members to those making presentations, as is the case in ordinary Court hearings. It would also have been favorable to a constitutional dialogue the putting requirements in place for the expositions that would contribute to a better dialogue, for example, convening thematic sessions on the different constitutional issues under discussion.

However, the Court’s greatest challenge is to demonstrate that the hearings have been a contribution to the constitutional debate in general and to the resolution of the case in particular. This involves avoiding two extremes. On the one hand, it must avoid giving the appearance that the arguments offered in its decision are simply an ex post facto rationalization reflecting the ideological or political affinities of its members. Informing the ruling to the public right after voting on it –and leaving the sentence itself and its opinions to be drafted afterwards, and made public a week later– contributes to this negative image, and it is made worse by how close in time the last of the more than one hundred oral presentations took place and the time of the vote itself, which makes it implausible to believe that they would have a chance to be pondered and duly considered by the members of the Court before casting their votes.

On the other hand, in order to contribute to the possibility of a constitutional dialogue, the Court should seek to avoid the appearance that in its decision it is simply yielding to public pressure. This warning, however, should not be construed as equivalent to the idea that the task of the Court’s job is precisely to not hear the voice of the majority of the population. Such a statement is not necessarily correct. It is correct if understood in the sense that the Court should not to take the majority opinion as being the ultimate interpretative criteria. But the idea of hearing the majority can also be understood as listening and giving due consideration to the arguments of the majority and the opinions that are submitted, which does not imply an obligation to follow the majority opinion, but only a duty to create the conditions for all relevant arguments to enter into the constitutional deliberation and for all affected interests be represented. This understanding of “hearing the majority” is not an obstacle to the counter-majoritarian role of constitutional justice.

Seen in this way, considering listening the opinions of various social and political actors as part of the Court’s duties is compatible with the fact that such opinions should be evaluated on their merit, some resulting ultimately to be irrelevant, obviously erroneous or implausible, while others may be relevant, justified and –eventually– persuasive.

Newsletter 5 (July 2017)

Editorial summary

Constitutional innovation for the crisis of representation. One of the outstanding aspects of the results of the participatory stage of the constituent process carried out by the Bachelet government is the inclusion therein of new constitutional demands. The systematization of the results of the deliberations that took place in the self-convened meetings and citizens assemblies shows that the participants proposed many contents that new Constitution should contain which are novel. These include, for example, demands for participatory democracy, decentralization, environmental protection, right to decent housing, protection of historical and cultural heritage, institutions such as plebiscites, referendums, and consultations, and an Ombudsman, as well as a demand for plurinationality which arose from the the indigenous constituent process. As noted by Rolf Alter, Director of Public Governance of the OECD, in the presentation of the report and assessment that the organization prepared regarding the participatory stage, such catalogue presents a formidable challenge for any government seeking to meet the demands contained in it.

The variety of novel demands contrasts with the way in which key actors of political have proposed to respond to the constitutional problem. The proposals recently presented by the Senate as well as the Constitution Commission of the Chamber of Deputies are very limited, besides –at least in the case of the latter– lacking systematic unity. The proposal by a group of senators to amend the current constitution in order to include a “Council of Ministers” and facilitate the incorporation of congresspeople to positions in the Executive branch as ministers, in an attempt to move the current system of government closer to a semi-presidential one, has been presented as a response to “the complex situation of governance affecting political systems”, including Chile’s, characterized by a “distrust of the citizenry towards politics and institutions, the discredit of all public powers and growing demands of a demanding civil society, very active in social networks”, as well as by “a mismatch between the more traditional political structures of government and social reality”. Despite the correct diagnosis, it is hard to see how the proposed amendment would help to restore the lost confidence. Despite the elements presented in the diagnosis, the solution offered seems to understand the “complex situation of governance” as one that can be mitigated by ensuring legislative effectiveness through a better collaboration between the Executive and Legislative branches.

On the other hand, the proposal agreed to by some members of the Constitutional Commission of the Chamber of Deputies does not include relevant innovations. Indeed, much of the proposed amendments don’t go much further than expressly recognizing principles and protections which to a large extent are already included in the current constitution, have been recognized by the Courts, or at least have already been guaranteed at a legislative level. Examples of this are the proposals of including a principle of transparency, a guaranteed access to information, and the right to due process. Others are modest improvements regarding the recognition of rights such as a right to receive damages for judicial errors, or the right of assembly. The most substantive proposals of this project are similar to the Senate’s proposal, focusing on the relations between the Legislative and the Executive (on issues such as the President’s control of Congress’ legislative agenda, or the mandatory attendance of ministers to special commissions of Congress), or affect the movement of officers between ministerial and parliamentary positions (modifying the replacement process of congresspeople who take positions in the Executive, or eliminating the ban on holding public offices which affects those who have been removed by impeachment). The only proposed reform aimed in the direction of restoring public confidence in representative institutions seems to be the proposal to include the uneligibility for Congress of persons who have been criminally convicted.

Loss of transparency of the constituent process. While it seems that no constitutional innovations will come from Congress, if the government acts according to its announcements, it is the draft new Constitution which the President will submit to Congress later this year where the innovations proposed by citizens will be collected, as well as those others necessary to face the legitimation crisis of the political system. However, the way in which this stage of the constituent process designed by the government is developing is taking place under secrecy.

Indeed, the current stage of the government’s constituent process is moving away from the transparency that characterized it up to the publication of the Citizens’ Bases for the New Constitution which contained the results of 2016’s participatory process. This loss of transparency includes the suggestion that transforming the Citizens’ Bases into a constitutional text is a technical work, as was suggested by the Government spokeswoman when she answered a question about who is drafting the presidential project by stating that “they will be known in due course” and that for now, it is important to “let them work quietly so they can develop this draft”.

Of course, the lack of transparency risks jeopardizing the legitimacy of the process before the citizens, particularly those who participated in the local meetings and assemblies, and who expect their opinions to be reflected in the government’s proposal, as was promised by the President. The government showed satisfaction with the OECD’s report’s assessment of the participatory stage of the constituent process, but the current stage is critical and the organization’s report highlights it, drawing attention to a weakness for which no solution is in sight. The report states: “Citizens may feel their inputs were not taken into consideration, especially given that the consultation results are not binding” –although it is difficult to understand how they could be, given the vagueness of concepts expressed– but also because “no active feedback has been provided, and no possibility of co-production and public engagement has been implemented”.

Insofar as the Government has chosen to prepare a new draft Constitution, and this is being carried out by a group of people whose legitimacy lies exclusively on the confidence the President places in them, the challenge it will face at the time of submitting the finished proposal will be to demonstrate convincingly that what will be contained in it, despite the secrecy and the natural difficulties of translating abstract and controversial concepts into a legal text, reflects the views of the citizenry so they –or at least those who took part in the participatory stage– could reasonably approve of it.

Newsletter 4 (July 2017)

Editorial summary

Indigenous peoples and the Araucanía Plan. As we have noted before, the problem of the relation between the Chilean State and the indigenous peoples seems to be the area where there is agreement across almost all of the political spectrum regarding its direct connection to constitutional issues. In this regard, it is remarkable that even from the Right there are proposals for the constitutional recognition of indigenous communities.

Of course, the motivations behind each proposal and their details vary significantly. While the Left recognizes the need to declare the plurinationality of the Chilean State and recognize the right to self-determination of indigenous peoples (as Beatriz Sánchez’s current platform document does), in the Right, there is a weaker acknowledgment of the need for constitutional recognition of the various cultures that constitute the Nation, as well as the “contribution” of indigenous peoples to its conformation (as the right-wing coalition Chile Vamos has stated in a document that elaborates on its constitutional proposals). Even on the furthest end of the right-wing part of the political spectrum there is a position, recently expressed by representative Osvaldo Urrutia, of the Independent Democratic Union [UDI] party, that asserts the need for constitutional recognition for instrumental reasons, driven in particular by what he perceives as the threat that indigenous communities other than the Mapuche people might resort to violence in order to enforce their demands. According to this position, constitutional recognition of all indigenous peoples, including political representation in Congress, would discourage those who resort to other forms of political action.

Meanwhile, the “Plan for the Recognition and Development of the Araucanía Region” (the “Araucanía Plan”), where most of the rural Mapuche population is located, and which was presented by President Bachelet seems motivated by reparatory concerns and the need to face a “history of disagreements and postponement” rather than by a direct recognition of the rights of indigenous peoples. Perhaps that explains some of its limitations. Some of these limitations, as some have observed, stem from the fact that the Plan reproduces some aspects of the proposals of the Presidential Advisory Commitee for the Araucanía Region, such as the emphasis on economic development in the region, which is “far from taking care of the core problems of the relationship between the Mapuche people and the State”, as José Aylwin –councilman of the National Institute of Human Rights– has put it. In the same vein, Marcial Colín –councilman of the National Corporation for Indigenous Development [CONADI] has argued that they “have not been well received by Mapuche communities informed and interested in their rights, because it essentially moves away from the rights recognized in the country, away from the recommendations made by United Nations Rapporteurs, and away even from the common sense of those who propose a different relationship between the Mapuche people and the Chilean State”.

Colín also emphasizes the absence in the Araucanía Plan of any mention of the demand for a recognition of plurinationality, which stands out in the results of the participatory stage of the Indigenous Constituent Process led by the Government, as well as in the proposed “Indigenous Constitutional Statute” drafted by the Legislative Committee of the CONADI’s National Council. The issue is directly related to constitutional change for recognizing Chile as a plurinational country is precisely the kind of fundamental declaration about the political community that should be found in a new Constitution.

Be that as it may, on August 3 will begin the consultation process on constitutional recognition and political participation of indigenous peoples for the new Constitution. Considering the precedent that some of the criticisms directed at the recommendations of the Advisory Commitee aimed at the lack of adequate representation of its members — which would violate the indigenous peoples’ right to choose their own representatives– particular attention should be paid to ensuring that the consultation process meets the standards required by ILO Convention 169. Unfortunately, a first misstep seems to have been that the Araucanía Plan itself is not the result of such a consultation process, something that had been denounced, among others, by government Senators and representatives of Mapuche community after the presidential public report in June 1 where Plan presentation was announced.

Chile Vamos and constituent process. After Sebastián Piñera’s victory in the presidential primaries of the right-wing coalition, Chile Vamos, it is likely that the former President will need the support of defeated forces to increase his chances of winning in November, or at least to ensure governance during a possible second term. Piñera has recognized that “we will do our best to strengthen the unity within Chile Vamos and attract all the other candidates”, in particular his defeated opponents, conservative Senator Ossandón and the more liberal Deputy Felipe Kast. Given the differences between those who competed in the primaries with regard to the need for, and the way of carrying forward, a constitutional change, it is worth asking if the unity sought will solve these differences, and in what direction: that of new Constitution through Congress (as proposed by Kast and Ossandón), or that of “improvements” to the current one (as Piñera proposes).

In general the attitude of the defeated candidates towards the constituent process led by the Bachelet government was of skepticism rather than rejection. Ossandón criticized the decision by Chile Vamos to exclude itself from the process and, on the contrary, called for the Right to participate in it. Meanwhile, Kast’s party, Evópoli, decided to participate in the process, with Kast stating that “we believe it is the healthiest way of not renouncing to any space in which to present our ideas”. As for the need for constitutional change, both Kast and Ossandón have recognized deficit of legitimacy of current Constitution before the citizenry. Kast has proposed a new Constitution, while Ossandón has defended the need for reforms through a process that would allow the constitution to “improve in legitimacy”.

Piñera, on the other hand, questioned the legitimacy of the participatory state of the constituent process led by the government and has not questioned the legitimacy of the current Constitution, simply recognizing that it’s advisability of “improving and perfecting it”. Such proposals for improvement would be those included in the document by Chile Vamos’ Constitutional Committee, and to which the former President usually refers. The search for convergence with a view to a potential right-wing coalition government will test the conviction behind the views expressed on the issue of constitutional change expressed by Ossandón, and in particular by Kast and his sector, given the more encompassing constitutional proposal of the latter. In addition to their differences with respect to the dichotomy between constitutional amendment and constitutional replacement, as well as the institutional procedure to carry out the change, there are important differences regarding the characteristics that the new (or amended) Constitution should have. While Kast and his sector prefer a “minimalist constitution” that rejects the explicit recognition of robust principles “such as subsidiarity or solidarity, that aim to ideologically guide the Constitution”, Chile Vamos’ proposal for improvements explicitly opts for a conception of the State according to which it “must develop its action based on principles and values such as dignity, social peace, freedom, solidarity and subsidiarity, merit and equality of opportunity, justice and responsibility, probity, transparency and good governance”.

Newsletter 3 (June 2017)

Editorial summary

Constituent process and presidential primaries. The electoral campaign for the presidential primaries of July 2 is the start of a new electoral cycle, which provides an opportunity for presidential candidates to take stances on the constituent process and the possibility of drafting a new Constitution, in particular through the legally mandated slot of electoral propaganda, in which candidates are alloted equal broadcast time, providing high levels of exposure to the voting population.

Although public discussion on the constitutional problem has declined in intensity in comparison to previous years, this year’s electoral campaigns will surely revive it. It is expected that different political sectors which aspire to gain political representation will try to give relevance to the highlight the issue, and even President Bachelet, head of the outgoing government, has stated her intention that the draft new Constitution she will present to Congress this year can be used to make the constitutional issue one on which candidates may take explicit position.

Therefore, both what this year’s political campaigns may express as well as what they may not, will be relevant. This can already seen in their alloted TV propaganda slots for the primaries. Right-wing coalition “Let’s go, Chile” [Chile Vamos] candidates, naturally more comfortable with the constitutional status quo, have kept silent on the subject, except for a brief reference in Felipe Kast’s spot to “constitutional recognition of indigenous peoples”, one of the promises included in his political platform. This general silence in part of the Right is understandable given that competition in primary elections involves candidates who dispute votes from the same political sector, and in the case of the Right, the constitutional issue will not yield electoral results. However, that silence often hides the fact that some proposals of those candidates require constitutional amendments. While this is acknowledged in their platform documents, their propaganda focuses on issues such as economic growth, crime, and employment.

In the case of the Frente Amplio, both Beatriz Sánchez’s candidacy and Alberto Mayol’s platforms propose a new Constitution drafted by a Constituent Assembly. Mayol’s propaganda slot was the first to deal substantively with the issue, attacking the legitimacy of the current Constitution’s dictatorial origin, using a metaphor of an “uneven playing field”, rules of a game that “were agreed among a few” in a political context in which “we had not even gone into the playing field”. Thus, his focus is on a political message that justifies the need for a new Constitution. Sánchez’s propaganda, on the other hand, although it made reference to the lack of legitimacy of the current constitution, both in its origin (it was “crafted under a dictatorship”) its exercise (“despite having been patched, it is still not working”), it stands out for elaborating on the subject of the Constituent Assembly, invoking the cases of other countries, but it gives no details regarding its specific characteristics nor the political and institutional steps necessary to get to it, although she has stated that her first government action would be to convene the Assembly.

Constitutional endorsement. A column by the academic Esteban Szmulewicz, and an interview with the former President of the Citizens Council of Observers of the constituent process [Consejo Ciudadano de Observadores] Patricio Zapata published online, suggest a similar diagnosis regarding the need for a constitutional change. According to the first one, the constitutional problem is that the current constitution “has not been unable to generate constitutional patriotism, that is, to crystallize the shared political culture of the country in light of our national history and to work as a tool of social integration”. In a similar vein, Zapata identifies as the main problem of the current constitution the fact that, because of its content, it is “difficult for everyone to feel it as his or her home”.

Both opinions agree on a diagnosis that can be referred to as a “lack of endorsement” of the constitution by the people. Beyond the abstraction of the concept of “constitutional patriotism” or the vagueness of the idea, expressed by Zapata, that the constitution should “feel like everyone’s home”, the diagnosis points to the gap between the politics that takes place within the instituted defined by the constitution, on the one hand, and citizens’ loyalties, on the other. The issue is the loss of legitimacy of representative institutions, the so-called “legitimation crisis” or –more mildly put– “crisis of trust” which the country is going through.

Despite broad agreement across the political spectrum regarding this diagnosis, there are differences in the proposed solutions. Both Smulewicz and Zapata give consideration to the possibility that the institution in charge of drafting the new Constitution could have a mixed composition, which would include citizen as well as sitting congresspeople. Zapata, along with some Christian Democratic politicians, has defended the idea proposal of a “Constituent Convention” composed of congresspeople and citizens appointed by Congress, not elected by the people. Szmulewicz, meanwhile, suggests the alternative that “a percentage of Constitutional Convention” be composed of sitting congresspeople “appointed by the respective political parties to which they belong”.

Such proposals seem completely counterproductive insofar as they seek to solve the problem of the gap between institutional politics and citizens by means of moving away from the basic form of exercise of democratic sovereignty, namely, the election of representatives by citizens through elections, and instead, to give to the political actors whose legitimacy is at the heart of the crisis –political parties and Congress– the power to choose the constituent representatives.